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2010 Supreme(Mad) 4153
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE T. SUDANTHIRAM
State by Inspector of Police, Vigilance & Anti Corruption, Rep. by Public Prosecutor
Versus
D. Ramadoss & Others
Crl.A.No.286 of 2001
Decided On : 21-09-2010
For the Appellant:A. Saravanan, Government Advocate (Crl.Side)
For the Respondents:R1, V. Gopinath, Senior Counsel for M.C. Swamy, R2 to R5, L. Chandrakumar & R6 & R7, R. Sreerangan for G. Ethirajulu, Advocates.
Admissibility of confessional statement and requirement of substantive evidence to establish benefit to accused
Headnote:
Corruption - Criminal Conspiracy - Indian Penal Code, Sections 120(B), 167, 477(A), 409; Prevention of Corruption Act, Sections 5(2), 5(1)(c), 5(1)(d) - Ex.P.162, confessional statement of approver Mohan not admissible against accused - No evidence of accused benefiting from excess amount paid to traders - Trial Court's judgment upheld
Fact of the Case:
The accused were charged with criminal conspiracy and corruption for creating false records and causing loss to a Panchayat Union. The prosecution's case relied on the confessional statement of an approver and evidence of overpricing.
Finding of the Court:
The confessional statement of the approver was held inadmissible as he was not tried as an accused and no substantive evidence was presented. The Trial Court found no evidence of the accused benefiting from the excess amount paid to traders and upheld their acquittal.
Issues: Admissibility of confessional statement, Benefit to accused from overpricing
Ratio Decidendi: Confessional statement of an approver is admissible against co-accused only when tried together; Lack of evidence of accused benefiting from overpricing
Final Decision: The Criminal Appeal was dismissed, upholding the Trial Court's judgment.
1. The respondents herein were the accused 1 to 7 in Spl.C.C.No.3 of 1995 on the file of the learned Special Judge-cum-Chief Judicial Magistrate, Villipuram. The accused Nos.1 to 5 were charged for the offences under Sections 120(B) r/w.167, 477(A), 409 I.P.C. and 5(2) r/w.5(1)(c) and (d) of the Prevention of Corruption Act, r/w.109 I.P.C. and the accused Nos.6 and 7 were charged for the offences under Sections 120(B) r/w.167, 477(A), 409 I.P.C. and 5(2) r/w.5(1)(c) and (d) of the Prevention of Corruption Act, r/w.109 I.P.C. and also charged for the offences under Sections 477(A) and 409 r/w.109 I.P.C. The accused Nos.1 to 7 were acquitted by the learned Magistrate from all the above said charges. Challenging the said acquittal, the State has preferred this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:-
The first accused was the Commissioner of Vanur Panchayat Union. The second accused was the Manager, third accused was the Extension Officer, fourth accused was the Accountant and the fifth accused was the Office Assistant of the said Vanur panchayat union. The sixth and seventh accused were the proprietors of Gajalakshmi Steel Traders, Cuddalore and Sri Karunamurthy Stores, Cuddalore respectively. During the period between July 1986 and October 1986 at Vanur Panchayat Union, Tirukoilur Marketing Society and other places in South Arcot District, the accused conspired together and in pursuance of the conspiracy, they instigated the approver Mohan to create false records at Tirukoilur Co-operative Marketing Society as if the pump materials covered by voucher Nos.312/7.8.1986, 471/3.10.1986, and 498/15.10.1986, of Vanur Panchayat Union were purchased by the Co-operative Marketing Society from Gajalakshmi Steel Traders, Cuddalore and from Sri Karunamurthy Stores, Cuddalore and thereafter sold to Vanur Panchayat Union. The Mohan, who was the approver in this case, was the Special Officer of Thirukovilur Co-operative Marketing Society. The price paid to the sixth and seventh accused was higher than the market price and thereby, loss was caused to the Vanur Panchayat Union. When the transaction had directly taken place between Vanur Panchayat Union and Gajalakshmi Steel Traders and Sri Karunamurthy Stores, an excess amount of Rs.66,659.65 was given. The accused have failed to follow the instructions and procedures as per the circulars issued by the Government.
3. In order to establish the case, the prosecution examined P.Ws.1 to 26 and marked Exs.P.1 to P.162. One Dr.Ilanchezhian was examined as a Court witness and two documents were marked as Court Exhibits. The accused were questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances and they denied their complicity. On behalf of the accused, no witness was examined and no document was marked.
4. The Trial Court, after analysing the oral and documentary evidence, acquitted all the accused from all the charges.
5. The learned Government Advocate (Crl.Side) submitted that the approver Mohan, who was also an accused, had given a confession before the learned Judicial Magistrate and it was recorded under Section 164 of Cr.P.C., which is marked as Ex.P.162 in this case and he was given pardon and made as an approver but during trial, due to some illness, he could not speak and therefore, he was not in a position to give evidence. Though the approver could not give evidence before the trial Court, his confession statement was marked as Ex.P.162. Hence, the trial Court ought to have placed reliance on Ex.P.162. The learned Government Advocate further submitted that the trial Court also ought to have held that the price of the materials purchased was higher than the market rate.
6. Per contra, the learned Senior Counsel Mr.V.Gopinath appearing for the first accused and Mr.L.Chandrakumar, learned counsel appearing for the accused 2 to 5 and Mr.R.Sreerangan, learned counsel appearing for the accused 6 and 7 submitted that as the
